Tag: Supreme Court

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ideological culture judiciary national politics & policies U.S. Constitution

Packing Unpacked

Supreme Court, Justice, court packing

The “court packing” notion that progressives itch to implement has obvious flaws — which have been addressed (but not settled) in the recent report of the Presidential Commission on the Supreme Court of the United States, initiated by the Biden Administration last April. 

The report, just out, did not give progressives what they want. “Opponents contend that expanding — or ‘packing’ — the Court would significantly diminish its independence and legitimacy and establish a dangerous precedent that could be used by any future political force as a means of pressuring or intimidating the Court. The Commission takes no position on the validity or strength of these claims.” 

Not a few Democrats wanted the Commission to take a very negative position on those claims. Democrats currently maintain a shaky hold on power in the Legislative and Executive branches. Had the Commission given them the green-light to push progressives onto the Court — to overwhelm the current “conservative” majority — they might have consolidated power.

The report is inconvenient for that political move — as is Associate Justice Stephen Breyer’s opposition. Damon Root, at Reason, summarizes Breyer’s case: “It is a tit-for-tat race to the bottom. One party expands the size of the bench for nakedly partisan purposes, so the other party does the same (or worse) as soon as it gets the chance.” Breyer fears that court-packing would undermine Court authority, and liberalism itself would suffer.

By “liberalism” I take Breyer to mean the order that is defined by the Constitution itself: separation of powers, basic rights, citizen control of government. And there is a way to save this kind of “liberalism”: fix the size of the Supreme Court in the Constitution.

The very opposite of court packing.

This is Common Sense. I’m Paul Jacob.

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judiciary property rights

Landlords Defended, Sorta

Supreme Court, property rights, rent

In late June, the Supreme Court declined to end an unlawful CDC-enacted national moratorium on evictions.

Things have apparently changed. The court just ruled — in a 6-3 decision — that the “balance of equities” has tilted in favor of qualified deference to property rights and letting landlords try to financially survive.

Now it will be easier, or possible, for many beleaguered property owners to maintain properties — on which they depend for their livelihoods and tenants depend for things like heat as well as their residencies.

The three dissenters on the high court say that the “balance of equities” still tilts the other way, in favor of violating the property rights of landlords to help tenants unable or unwilling to pay the rent.

The court’s decision does not mention property rights. It does cite a 1972 precedent that cites other precedents “[requiring] Congress to enact exceedingly clear language if it wishes to significantly alter the balance between federal and state power and the power of the Government over private property.”

Of course, the U.S. Constitution gives Congress no authority to violate individual rights at will — even if it uses exceedingly clear language to do so. The Constitution does not say it’s OK to violate the Constitution.

What now? 

Many landlords are still subject to state or municipal restrictions on evictions that this decision does not overturn. But the ruling may help them press for relief.

And we must hope that the U.S. Congress doesn’t get around to intelligibly re-revoking the rights of property owners.

This is Common Sense. I’m Paul Jacob.

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judiciary term limits

Term Limits or Death?

Supreme Court, packing

“The only responsible choice for Justice Breyer is to immediately announce his retirement,” contends Brian Fallon, executive director of Demand Justice, “so President Biden can quickly nominate the first-ever Black woman Supreme Court justice.”

Not merely pushing identity politics, Fallon is warning of the risk of “Democrats losing control of the Senate before a Biden nominee can be confirmed.” 

No retirement announcement yet from 82-year-old Stephen Breyer, who recently advised Democrats against court-packing. Having served on the High Court for the last 27 years, he is the oldest justice and second-longest serving.* 

“Democrats’ fears about Breyer come after [Justice Ruth Bader] Ginsburg refused to heed calls from liberals and former President Barack Obama to step down,” notes Forbes, “which ultimately resulted in Trump appointing conservative-leaning Justice Amy Coney Barrett to succeed her when Ginsburg died in September.” 

It is painfully obvious: life terms at the highest court have produced gamesmanship — not on the Court, mind you, but in Congress, that cesspool of even longer tenure where our supposed representatives do anything but.

And why allow personal circumstances or the vagaries of death to decide such potentially critical matters in our republic? 

To prevent politicians from politicizing the Supreme Court of the United States, put the number of justices (9) into the Constitution and term-limit those justices to a single 18-year term. No renomination. With nine justices, cycle one out and a new one in every two years. 

There are other matters to consider and settle. Do so in constitutional form, so the whole country is engaged and the Court is hereafter more secure and independent of that branch most in need of term limits.

This is Common Sense. I’m Paul Jacob.

 * On the all-time Supreme Court longevity list, Breyer thus lags ten places behind Justice Clarence Thomas, who has served 10,767 days on the court and currently ranks 16th.

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Constitutionalize the Court

Supreme Court, court packing

“To undo the damage Republicans did by stealing multiple Supreme Court seats,” argues Demand Justice, “we should immediately add seats to the Supreme Court and appoint justices who will restore balance.”

“Stealing”? That’s hyperbolic, to say the least. The Senate used its constitutional prerogative by refusing to approve President Obama’s nomination of Merrick Garland in 2016 and four years later by swiftly voting to confirm Justice Amy Coney Barrett.

The group’s proposal? Add four new justices. 

Facing a 3 to 6 justice deficit (Dem-nominated vs. GOP-nominated), many Democrats and groups like this one have settled on adding four.

For “balance.” 

Which means, to them, going from the minority to the majority.

And you thought Democrats weren’t good at math!

Last week, President Biden announced a commission to look into this “court packing” notion, as well as other possible changes to the High Court, including term limits. 

“My colleagues and I need not wait for the findings of a commission,” offered Rep. Mondaire Jones (D-N.Y.). It is “obvious,” he added, “we must expand the Supreme Court, before it’s too late.”

That is, before the next election or a resignation or tragic death of a single D-Senator might flip the Senate to Republican control. 

“Adding seats is straight-forward and easy,” reminds Demand Justice, correctly explaining that the Constitution specifies no number, “so Congress can change it at any time.”

Yes, even with the slimmest of congressional majorities Democrats could completely re-make the High Court. Without a single Republican vote. 

A partisan takeover of the Supreme Court is way too “easy” — until we place the number of justices firmly in the Constitution, away from poisonous partisan politicians. 

It’s the most urgent reform of all.

This is Common Sense. I’m Paul Jacob.

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Ghost of an Argument

Amy Coney Barrett, ACB, ,Supreme Court

On the 73rd anniversary of the birth of Hillary Clinton, the United States Senate confirmed Amy Coney Barrett to the Supreme Court.

Mrs. Clinton, the former Democratic presidential candidate, looms in the background of the issue as a sort of éminence grise, a specter of the politics of the left. Had she won in 2016, late luminary RBG would have been replaced by a progressive woman. Not ACB.

For what would have been Hillary’s, count ’em, third nomination.

Not a specter, or grisey eminence, is Senator Kamala Harris (D-Calif.), Joe Biden’s partner in procuring 2020’s big prize. 

“I’m on my way to the Senate floor to vote no on Judge Amy Coney Barrett’s nomination to the Supreme Court,” Harris tweeted, yesterday. “Health coverage for millions of people hinges on who fills this seat. It’s clear that this nominee has the potential to do great harm to the American people.”

Note that this complaint has nothing to do with actual judicial qualifications. It has to do with a policy that Democrats insist upon: socialized medical billing. But as ACB made clear in the hearings, her judicial mindset is about legal process, as it should be, not government policy.

An hour later, candidate Harris asserted that Senate Republicans had “denied the will of the American people by confirming a Supreme Court justice through an illegitimate process.”

Illegitimate?

Well, you see, “more than 62 million people have already voted.” That is it. Harris pretends that since there is an election next week, and some people have already voted, the normal, constitutional business of Congress should not go on.

Anything to rescue their broken policy, Obamacare. 

Next week’s election sure will have consequences, but ACB’s stint on the Court resulted from Hillary’s quite legitimate loss.

This is Common Sense. I’m Paul Jacob. 

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Biden’s Court-Packing Scheme

Joe Biden, Supreme Court, court packing, election, Democracy

Hold on! What scheme am I talking about?

Joe Biden hasn’t said that he agrees with other Democrats (including former Democratic presidential candidates) who propose that the U.S. Congress act to dramatically expand the number of U.S. Supreme Court justices.

Joe Biden hasn’t said that at all. 

In his first and so-far-only debate with President Trump he refused to say, because if he did then that would become the issue.

“The issue is the American people should speak,” he said, and then turned to the camera. “You should go out and vote. . . . Vote and let your senators know how strongly you feel. Vote now. Make sure you in fact let people know.”

Know what, precisely? To vote to allow a Democratic administration to seize control of the Court, overcoming any constitutional objections to his (or her) socialist schemes?

But then Biden turned against the voters, when asked on Friday, whether voters deserve to know where he stands on court-packing: “No, they don’t deserve” to know. “I’m not going to play his [Trump’s] game. . . .”

So, officially, we “don’t know” whether Biden supports packing the High Court the way FDR tried in 1937.

Do voters deserve better from Biden? 

They do not! 

O, those voters — always demanding to know positions and agendas and things. Playing right into the hands of the opposition. 

Come on, man! Ya gotta vote for the guy to know what’s in him.

I know what’s on your mind. You’re asking, “Are you saying that Joe Biden’s coy covertness toward the imposition of one-party authoritarian government exemplifies a crude disdain for voters’ legitimate desire to know what their vote will get them and is even more disqualifying than his stealth court-packing scheme?”

Please. Don’t put words in my mouth.

This is Common Sense. I’m Paul Jacob.

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